High Court: Plaintiff granted ‘unusual application’ for discovery of defendant’s medical records

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The woman has also been granted discovery of conveyancing documents for three properties which allegedly show the grandparents’ intention to defeat the woman’s claim for damages.

Explaining that this was the first application before the High Court in which a defendant’s medical records were sought in discovery, Mr Justice Barr was satisfied that the defendant had opened himself to discovery of his psychiatric records by referring to his mental state in his defence, and found that the discovery sought was necessary in all the circumstances.

Unusual application

Justice Barr described the pre-trial application for discovery as “a somewhat unusual application”, in which the plaintiff sought an order directing that the defendant should make discovery of his medical records from two psychiatric institutions.

The plaintiff (J) also made an application that both of the defendants (Mr McP and Mrs McP, her paternal grandparents) should make discovery of documents in their possession, power or procurement concerning the transfers of certain properties from Mr McP to Mrs McP, which it is alleged by J, were undertaken with a view to defeating her claim for damages against Mr McP. J claims against both defendants, an order pursuant to s. 74 of the Land and Conveyancing Law Reform Act 2009, declaring void the said transfers and conveyance of the three properties identified in the statement of claim.

Background

It was alleged by J that between June 2005 and January 2008, when she was aged between 9 years and 12 years, she was subjected to a large number of sexual assaults carried out by the first named defendant (Mr McP). J made a formal complaint to the Gardaí, and criminal charges were brought against Mr McP.

In April 2010, at the Circuit Criminal Court, Mr McP entered a guilty plea to eighteen counts in respect of criminal offences committed by him against J; and was sentenced to a term of imprisonment.

In the present proceedings J seeks damages, including aggravated damages, for assault, trespass to the person, and for breach of her constitutional right to bodily integrity and breach of fiduciary duty.

Against the second named defendant, Mrs McP, J is claiming damages for negligence in failing to exercise reasonable care for her safety.

Discovery of psychiatric records

In what Justice Barr described as “a somewhat unusual defence” containing “the usual denials”, Mr McP made certain partial admissions, but put in issue certain matters in relation to his mental state at the time that the admitted acts were carried out.

It was on the basis of these specific pleas, that J sought discovery of his psychiatric records.

Justice Barr stated that it was “very common for the court to make orders for discovery against plaintiffs directing them to make discovery of their medical and psychiatric records”, but that this was “the first occasion” that the Court had heard such an application on behalf of a plaintiff.

Accepting that in an ordinary civil action for damages for assault and battery, the defendant’s medical records would not generally be available, Justice Barr explained that he preferred the arguments put forward by the plaintiff and accepted the submission that once Mr McP “chose to specifically put in issue his mental state and level of insight at the time of the admitted acts, he thereby opened himself to an application for discovery of his psychiatric records, as these would tend to establish what was, in fact, his mental state at the time that he obtained counselling and other psychiatric treatment”.

Justice Barr was also satisfied that having regard to the claim for exemplary damages, discovery of Mr McP’s psychiatric records was necessary and relevant to this aspect of J’s action; and ordered that Mr McP make discovery in the terms specified in the notice of motion, for the specified period between January 2008 and April 2010.

Discovery of conveyancing documents

In relation to the files concerning the transfers or transactions concerning the three properties in the notice of motion, Justice Barr was satisfied that the documents were relevant and necessary to enable the plaintiff to properly prosecute her claim for relief pursuant to s. 74 of the Land and Conveyancing Law Reform Act 2009.

Accordingly, Justice Barr directed that both defendants make discovery in the terms specified.

Allowing for a “slightly longer period under this heading” of January 2008 to January 2011, Justice Barr stated that this was due to the possibility of “documentation which came into existence some months after the conclusion of the criminal proceedings, which may be relevant to this issue”.